Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2017
  4. Stanway v Information Commissioner - [2017] QCATA 30

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Stanway v Information Commissioner[2017] QCATA 30

Stanway v Information Commissioner[2017] QCATA 30

CITATION:

Stanway v Information Commissioner & Anor [2017] QCATA 30

PARTIES:

Adam Stanway

(Appellant)

 

v

 

Information Commissioner

(First respondent)

 

and

Federick Marsden Youth Centre Inc

(Second respondent)

APPLICATION NUMBER:

APL259-14

MATTER TYPE:

Appeal

HEARING DATE:

20 November 2014

HEARD AT:

Brisbane

DECISION OF:

Judge Horneman-Wren SC DCJ

DELIVERED ON:

7 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal allowed.
  2. The decision of the first respondent of 4 June 2014 is set aside.
  3. The first respondent is to consider the applicant’s application for external review according to law.

CATCHWORDS:

RIGHT TO INFORMATION – AGENCY – PUBLIC AUTHORITY – ERROR OF LAW – STATUTORY INTERPRETATION – whether the Information Commissioner erred in law in finding as a matter of fact that Letters Patent issued under the Religious, Education and Charitable Instruments Act 1861 (RECI Act) incorporated the second respondent – whether the Information Commissioner erred in concluding that the second respondent was not created by the Governor in Council – whether the Information Commissioner erred in finding that second respondent was not established by government under an Act for a public purpose – whether the Information Commissioner erred in concluding that second respondent was not otherwise a public authority within the meaning of that term in the RTI Act – Where the applicant contends that the second respondent was established for a public purpose under the RTI Act – Where the Information Commissioner erred in law in concluding that the second respondent was not a public authority and thus an agency within the meaning of s 16 and 14 of the RTI Act – Where appeal allowed and decision of first respondent set aside

APPEARANCES:

 

APPLICANT:

Mr Adam Stanway in person

RESPONDENT:

Mr S. Grant of counsel

REASONS FOR DECISION

  1. [1]
    The appellant, Adam Stanway, applied to Frederick Marsden Youth Centre (FMYC)[1] for access to various documents.  The application purported to be made pursuant to ss 23 and 24 of the Right to Information Act 2009 (the RTI Act). 
  2. [2]
    FMYC advised the appellant that it was not an agency subject to the RTI Act and thereby refused his application.  The appellant applied to the Office of the Information Commissioner for external review of the decision of FMYC to refuse access.  The Information Commissioner decided that she did not have jurisdiction to deal further with the external review application because FMYC is not an agency subject to the RTI Act.[2] 
  3. [3]
    The appellant appeals from that decision of Information Commissioner.  The appeal to the tribunal may only be on questions of law and may only be by way of a rehearing.[3] 

The appeal grounds

  1. [4]
    The appellant raises the following four alleged errors of law in the Information Commissioner’s decision. 
  1. That the Information Commissioner erred in law in finding as a matter of fact that Letters Patent issued under the Religious, Education and Charitable Instruments Act 1861 (RECI Act) incorporated the entire then existing Marsden Home for Boys, when the evidence only supported a more limited factual finding; that the President, Secretary and Treasurer of the Marsden Home for Boys were incorporated by Letters Patent. 
  2. That the Information Commissioner erred in concluding that FMYC was not created by the Governor in Council. 
  3. That the Information Commissioner erred in finding that FYMC was not established by government under an Act for a public purpose. 
  4. That the Information Commissioner erred in concluding that FMYC was not otherwise a public authority within the meaning of that term in the RTI Act.  The appellant contends that FMYC was established for a public purpose by an Act. 

The RTI Act

  1. [5]
    Parliament’s reasons for enacting the RTI Act are disclosed in its preamble.  It provides: 

Parliament’s reasons for enacting this Act are—

1  Parliament recognises that in a free and democratic society—

  1. there should be open discussion of public affairs; and  
  2. information in the government’s possession or under the government’s control is a public resource; and
  3. the community should be kept informed of government’s operations, including, in particular, the rules and practice followed by government in its dealings with members of the community; and
  4. openness in government enhances the accountability of government; and
  5. openness in government increases the participation of members of the community in democratic processes leading to better informed decision-making; and
  6. right to information legislation contributes to a healthier representative, democratic government and enhances its practice; and
  7. right to information legislation improves public administration and the quality of government decision-making; and
  8. right to information legislation is only 1 of a number of measures that should be adopted by government to increase the flow of information in the government’s possession or under the government’s control to the community.

2  The Government is proposing a new approach to access to information. Government information will be released administratively as a matter of course, unless there is a good reason not to, with applications under this Act being necessary only as a last resort. 

3  It is Parliament’s intention to emphasise and promote the right to government information. It is also Parliament’s intention to provide a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to provide the information. This Act reflects Parliament’s opinion about making information available and the public interest. 

  1. [6]
    The object of the Act is set out in s 3.  It provides:
  1. The primary object of this Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.
  2. The Act must be applied and interpreted to further the primary object.
  1. [7]
    Section 23(1)(a) of the Act provides:
  1. Subject to this Act, a person has a right to be given access under this Act to—
  1. documents of an agency; and
  2. documents of a Minister.
  1. [8]
    Section 14(1)(c) defines an agency to include a public authority. 
  2. [9]
    Section 16(1) defines a public authority, relevantly, as follows: 
  1. an entity— 
  1. established for a public purpose by an Act; or
  2. established by government under an Act for a public purpose, whether or not the public purpose is stated in the Act;
  1. an entity created by the Governor in Council or a Minister.

The RECI Act

  1. [10]
    Section 1 of the RECI Act provided: 

1.  Governor may incorporate Institution.  It shall be lawful for the Governor with the advice of the Executive Council from time to time to issue Letters Patent under the Seal of the Colony and therein to declare that any person or persons and their successors for ever holding any religious or secular office or preferment or exercising any religious or secular functions to which he or they shall have been duly called or appointed in accordance with the rights laws rules or usages of the community or institution to which such person or persons should belong or comprising any body or association of persons having for its principal object the holding and conducting at any city, town or place, of an annual or other periodical agricultural, horticultural, pastoral or industrial show shall be a body corporate by such name and style as may in and by the said Letters Patent be given to such Corporation and such person or persons shall by that name have perpetual succession and a common seal and shall by the same name from time to time and at all times thereafter be capable to receive purchase acquire and possess to them and their successors so called or appointed to and for the uses and purposes of the said Corporation and of the religious or secular institution or body or association of persons by which such person or persons and their successors shall be so called or appointed any messuages lands tenements and hereditaments of what nature kind or quality soever and also to receive purchase acquire and possess to and for the same uses and purposes any goods chattels gifts or benefactions whatsoever and to mortgage charge or alienate all or any of the said messuages lands tenements hereditaments goods chattels gifts or benefactions provided such a mortgage charge or alienation be not contrary to the gift grant or dedication of the original donor or of the constitution of such body or association of persons and that the moneys to be raised thereby shall be applied to the same uses and purposes and such corporation shall and may by the same name be capable to sue and to be sued both at law and in equity in like manner as any other body politic or corporate or any persons capable to sue and be sued in law or in equity in any manner whatsoever.

  1. [11]
    Section 4 of the RECI Act provided: 

4.  Proof of succession. Any person or persons seeking for incorporation under the provisions of this Act and his or their successors shall file in the office of the Supreme Court with the Registrar thereof a copy of the documentary evidence of such person or persons, calling or appointment and of the calling or appointment of such successor or successors and such copy shall be verified by affidavit or solemn declaration under "The Oaths Acts, 1867 to 1959," and there shall be produced therewith to the said Registrar, for such inspection and comparison as he deems fit, the original document.

Frederick Marsden Youth Centre

  1. [12]
    The institution, Marsden Home for Boys, was initially established as an orphanage and began operating in 1929 on land at Petrie donated by Mr Frank Marsden.[4]  Of its establishment and operations, the Information Commissioner said this in her reasons, at paragraph 6 to 7: 

It appears a group of concerned citizens organised to manage the affairs and administration of the orphanage, leading to the formation of a governing committee. This committee settled a constitution and set of rules, and in late 1932 resolved to seek incorporation under the RECI Act.  Steps including the swearing and filing of affidavit material were taken, and in December of that year Letters Patent establishing the ‘Marsden Home for Boys’ were, as noted, granted.

Orphanage operations were later discontinued, and a name change reflecting the organisation’s shift away from residential care was effected by a grant of further Letters Patent on 2 March 2000, restyling the entity the ‘Frederick Marsden Youth Centre Inc’.  [footnotes omitted]

  1. [13]
    The minutes recording the motion resolving to seek incorporation of the Marsden Home for Boys were exhibited to an affidavit of the then Treasurer of the unincorporated association, Mr Eric Samuel Thompson, prepared pursuant to the requirements of s 4 of the RECI Act.  The resolution was as follows: 

That as it is the intention of the founders of the home that its work shall be perpetual in its nature, and that as a means to secure that object it is advisable to constitute a body having perpetual succession, the subscribers and members of this committee in meeting duly convened resolved to seek incorporation of themselves and their successors under the provisions of “the Reglious Eductional and Charistable Instritutions Acts of 1861 and 1895” and that Dr Ernest Walter Kerr-Scott, the President, Miss Daisy Maud Maynard, the Secretary and Mr Eric Samuel Thompson, the Treasurer, of the committee be the first members of the proposed body corporate, and be authorised to apply to the Governor in Council for the incorporation under the aforesaid statutes of themselves and their successors from time to time in those offices respectively, under the style of “the governors for the Marsden Home for Boys”. 

  1. [14]
    Letters Patent issued on 22 December 1932 declaring that the holders of the offices of President, Secretary and Treasurer and their successors holding those offices shall be a body corporate. 

The Information Commissioner’s decision and reasons

  1. [15]
    The Information Commissioner first considered whether or not FMYC was an entity established by government under and act for a public purpose and thus a public authority pursuant to s 16(1)(a)(ii) of the RTI Act. 
  2. [16]
    After considering the meaning of “established” as used in s 16 of the RTI Act, as analysed by the Deputy President of the tribunal, Kingham DCJ, in City North Infrastructure Pty Ltd v Information Commissioner,[5] the Information Commissioner said at [18]: 

FMYC derives its existence as a legal entity from the Letters Patent granted by an organ of government – the Governor in Council. The applicant contends that, accordingly, it was ‘established by’ government. The applicant’s case in this regard is certainly open on aspects of the definition expounded by Kingham J [sic] in the paragraph above: I do not think it can be said that anything other than the granting of Letters Patent by the Governor in Council was the act ‘giving legal form’ to FMYC. 

  1. [17]
    However, the Commissioner then went on, at [19], to say: 

Yet equally it can be seen there are a range of alternative meanings of the word ‘established’ extending its definition beyond the narrow technical sense the applicant would have me adopt.  A reasonable person adopting the natural and ordinary usage of ‘set up, institute or found’, for example, would not identify government as having established FMYC, but Mr Marsden and the concerned citizenry that donated land, erected premises, began an orphanage, formed a governing committee and eventually, petitioned or applied to government seeking the formal incorporation of an entity under the RECI Act. 

  1. [18]
    At [22]-[25] the Commissioner observed: 

The purpose of the RTI Act is, essentially, to foster access to government information. Given this purpose, it is in my view preferable to construe section 16(1)(a)(ii) of the RTI Act as requiring a decision-maker to identify the ‘founder’, the principal actor or motivating force responsible for causing an entity’s coming into existence – that is, the agent substantively responsible for arranging for the existence of the entity, and not simply for conferring its legal form.

In other words, in interpreting section 16(1)(a)(ii) of the RTI Act, I consider I am required to identify the character or nature of those responsible for ‘setting up’ or ‘founding’ the relevant entity – for, in this case, arranging for incorporation by bringing before government a request for Letters Patent, and thus for practically causing (rather than merely formalising) the bringing into existence of the entity. If, as in this case, the ‘founder’ is a non-government actor, then it cannot be said that the entity was ‘established by government’. 

  1. [19]
    The Commissioner concluded, at [25]: 

The natural and ordinary meaning of the ‘language employed’ in section 16(1)(a)(ii) in my view requires a decision maker to identity who is, in short, the ‘founder’ of a given entity. Construing the section in this manner aligns with the ‘general purpose and policy’ of the access scheme enshrined in the RTI Act – to extend access to information held by government. Reading the section in this fashion gives the provision full reign to address the ‘mischief’ it is intended to remedy – capturing and subjecting to the Act’s transparency obligations entities founded or set up by government – while excluding private benevolent, charitable or community organisations, which Parliament did not intend, so far as I can ascertain, to be subject to the Act.

  1. [20]
    The Information Commissioner considered that “the practical view I am proposing” also gained some support from the decision of Kingham J (sic) in City North.  She then referred to the applicant’s reliance upon what Applegarth J had said in Davis v City North Infrastructure Pty Ltd.[6]  The Information Commissioner considered that the issue is “finally balanced”, and although recognising the force of the applicant’s submissions, considered that “the approach that is both justifiable and preferable in this case is that which I have advanced above”.[7] 
  2. [21]
    The Information Commissioner considered, at [37]-[38]:

Accordingly, I am satisfied that the ‘plain text which has actually been employed’ in section 16(1)(a)(ii) of the RTI Act – ‘established by government’ – requires that the entity under consideration have been substantively founded or set up by government. FMYC was not.

In this regard, I do not accept that because government plays a role in conferral of legal form, government can therefore be said to ‘establish’ that entity in the sense discussed above. As I have explained, I prefer an interpretation of the phrase ‘established by’ that requires identification of those the ordinary person would understand to have founded a given entity – the organisers, volunteers and philanthropists who have taken initiative, marshalled resources and invested time, money and effort in arranging for incorporation. While undeniably responsible for conferring ultimate legal imprimatur, the Governor in Council took no practical initiative in bringing FMYC into being.

  1. [22]
    For those reasons the Information Commissioner determined that it could not be said that FMYC was established by government and, accordingly, it was not a public authority within the meaning of s 16(1)(a)(ii) of the RTI Act.[8] 
  2. [23]
    The Information Commissioner next considered whether FMYC was an entity created by the Governor in Council or a Minister. She acknowledged that “the issuing of Letters Patent by the Governor in Council under the RECI Act may be argued to have ‘created’ FMYC,”[9] however she considered: 

...the preferable view to be that it was the concerned citizenry – those who actually funded and constructed an orphanage and took steps necessary to obtain incorporation under the RECI Act of an entity to carry on their aims – who were ‘the cause or occasion of’ FMYC’s existence and thus responsible for bringing FMYC ‘into being’.[10] 

  1. [24]
    The Information Commissioner concluded, at [45]-[46]: 

Bearing in mind the object of the RTI Act and Parliament’s intention as set out in the Preamble – to foster access to government, and not community or private charitable information – in my view it is preferable that, as with section 16(1)(a)(ii), section 16(1)(b) of the RTI Act be construed as requiring identification of the ‘founder’ of a given entity, as that concept is commonly understood. The founder of FMYC was neither the Governor in Council nor a Minister, but the relevant group of concerned citizens.

In reaching this conclusion, I do not intend to ‘downplay’ the role of the Governor in Council in FMYC’s formation. I have simply adopted a broader, practical view of what is meant by the phrase ‘created by’ as deployed in section 16(1)(b); one preferring substance to form. This has the consequence of excluding from the operation of the RTI Act private charitable and community organisations such as FMYC, and results in an interpretation that aligns with Parliament’s intention and best achieves the purpose of the RTI Act: to promote the right to government information. 

  1. [25]
    For those reasons, the Information Commissioner determined that she did not have jurisdiction to deal further with the application for external review. 

Submissions on the appeal

  1. [26]
    The Information Commissioner took the orthodox approach of not seeking to make any substantive submissions on the appeal and indicated that she would simply abide the orders of the tribunal.[11] 
  2. [27]
    In written submissions, the second respondent submits that it was not an entity established by a government department, nor an entity created by the Governor in Council or a Minister.  Rather, the second respondent submits that its existence was created by:
  1. A generous donation by Mr Fredrick Marsden; and
  2. Members of the Congregationalist community who organised a management committee and sought incorporation under the RECI Act.
  1. [28]
    The second respondent submits that:

“The mere act of the Governor in Council issuing letters of patent (sic) does not support a contention that such an entity is ‘established’ by government. To make such a determination would be to determine that entities with registered names are ‘established by government’ and subject to the RTI Act.”[12]

  1. [29]
    It submits that “there is clearly no intention on part (sic) of the legislature to   have the RTI Act apply so broadly nor is such contention a sensible interpretation of the Act.”[13]
  2. [30]
    It adopts the Information Commissioner’s finding that it was established by Mr Marsden and the concerned citizenry as being accurate “and the only sensible contention to be reached on the facts.”  It contends that this finding is supported by the objects of the RTI Act set out in s 3(1).
  3. [31]
    As to whether FMYC was a public authority as provided by s 16(1)(b) of the RTI Act, that is an entity created by the Governor in Council or a Minister,  the second respondent adopted the reasoning of the Information Commissioner in paras [40] to [46] of her reasons for decision and submitted that a determination could not be made that it was created by the Governor in Council or a Minister.[14]  It submitted that “the Commissioner was correct in determining that the second respondent was not ‘created’ by the Governor in Council or Minister within the reasonable application of the meaning of that term to the objects set out in s 3(1) of the RTI Act.”[15]
  4. [32]
    In its oral submissions, the second respondent submitted that s 16(1)(b) ought be read ejusdem-generis with s 16(1)(a) such that the creation of the entity by the Governor in Council (or Minister) under s 16(1)(b) must be for a public purpose.  It contends that it was not established or created for a public purpose; but rather for private purposes such as holding assets with succession.
  5. [33]
    It submitted that it was not government that caused the corporation to be registered.  It contends that it was not established by government but rather that it was established by the unincorporated association’s members resolving to apply for incorporation under the legislation.

Consideration

Section 16(1)(b) – an entity created by the Governor in Council?

  1. [34]
    It is convenient to consider first whether, in terms of s 16(1)(b) of the RTI   Act, the incorporated entity FMYC is an entity created by the Governor in Council.
  2. [35]
    In considering that issue, it is also convenient to deal at the outset with the second respondent’s contention that s 16(1)(b) ought to be read ejusdem-generis with s 16(1)(a) such that an entity created by the Governor in Council as referred to must be one created for a public purpose, and that FMYC was created for a private purpose.
  3. [36]
    As set out above, the Information Commissioner made a finding of fact at paragraph 15 of her reasons that the second respondent appeared to have been established for a private purpose.  The Information Commissioner made that finding by reference to the explanation of a public purpose in McPhillimy v Gold Coast Motor Events Co[16], and to the objects clause of FMYC’s 1932 Constitution and its mission statement, each of which appeared to fall within the concept of a “public purpose”.  No appeal was, or could, be brought from that factual finding on the appeal.  The submission now advanced by the second respondent is inconsistent with that unchallenged (and unchallengeable) factual finding.
  4. [37]
    In any event, I am of the view that the ejusdem-generis rule has no application to s 16(1)(a) and (b) of the RTI Act.  Mr Grant of counsel, who appeared for the second respondent, sought to support his argument for s 16(1)(b) to be construed ejusdem-generis with s 16(1)(a) by what was said by Latham CJ in R v Regos & Morgan.[17]  However, as was identified by His Honour, “before the ejusdem-generis rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made.”
  5. [38]
    Section 16(1)(a) does not contain a collection of specific cases for which some genus can be identified.  Rather, it contains two separate references to an entity to which s 16(1)(a) applies as being one which is established for a public purpose.  There is no genus to which different specific cases may belong.  Section 16(1)(b) does not identify some other specific case which ought be construed narrowly so as to conform with the genus identified by the other specific cases.
  6. [39]
    Section 16(1)(b) simply does not contain the words “for a public purpose” which are used in s 16(1)(a).  They ought not be read in.[18]
  7. [40]
    In my view, FMYC is an entity created by the Governor in Council.  As the Information Commissioner herself identified, it cannot be said that anything other than the granting of Letters Patent by the Governor in Council was the act giving legal form to FMYC.
  8. [41]
    Other acts which the Commissioner identified, such as Mr Marsden and the concerned citizenry constructing premises, beginning an orphanage and forming a governing committee, had no bearing upon the creation of the incorporated entity.
  9. [42]
    As the applicant correctly identifies in his submissions, the corporate body comprising the holders of the various offices from time to time is not the same and the unincorporated association which continued to exist when its officers were incorporated.[19]
  10. [43]
    In Southport Corporation v Corporation of the Trustees of the Order of the Sisters of Mercy (Qld), the High Court said of incorporation by Letters Patent issued pursuant to the RECI Act:

“the plain answer is that the statute gives corporate existence and capacity…”[20]

  1. [44]
    Whilst it is correct that members of the governing committee petitioned government seeking incorporation, that act of itself was also incapable of creating the entity.  The entity was only able to be created by the Governor acting with the advice of the Executive Council.
  2. [45]
    In my view, the clear words of s 16(1)(b) leave no room for a construction that looks to some “broader concept” which requires identification of the person or persons who “set up” the entity through acts such as bestowing of property or construction of premises or contribution of time and effort.
  3. [46]
    Whilst a statutory provision should be construed so that it is consistent with the language and purpose of all of the provisions of the statute,[21] and an interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation,[22] the objects clause does not “control clear statutory language.”[23]
  4. [47]
    In my view, the interpretation preferred by the Information Commissioner, and contended for by the second respondent on the appeal, is not one that arises from the language of the statute.  There is nothing in the language of s 16(1)(b) which requires the identification of the ‘founder’ of a given entity.  Indeed, if the proper interpretation to be given to s 16(1)(b) did require such identification, it is difficult to conceive of any circumstances in which the Governor in Council would ever be identified as the founder of an entity in the sense discussed by the Information Commissioner. 
  5. [48]
    As Kingham DCJ when Deputy President of QCAT said in City North Infrastructure Pty Ltd v Information Commissioner,[24] parliament’s intention is expressed not only in the Act’s objects provision, but also from the structure of the Act and the specific language used to give effect to the stated object.  One of the ways in which the Act’s object is expressed in the RTI Act is in the way the parliament has chosen to define a public authority including, by s 16(1)(b), an entity created by the Governor in Council.
  6. [49]
    In my view, FMYC is a public authority by operation of s 16(1)(b). 

Section 16(1)(a)(ii) – an entity established by government under an Act for a public purpose?

  1. [50]
    The appellant contended, both before the Information Commissioner and   on the appeal, that it was an organ of government, the Governor in Council who granted the Letters Patent and, on that basis, the FMYC was established by government.  As already noted, however, the Information Commissioner considered that although it could not be said that anything other than the granting of the Letters Patent was the act giving legal form to FMYC, she preferred what she considered to be an alternative, broader construction of s 16(1)(a)(ii) which required the identification of the “founder, the principle actor or motivating force responsible for causing an entity coming into existence – that is, the agent substantively responsible for arranging the existence of the entity, and not simply for conferring its legal form.”  The Commissioner considered that the natural and ordinary meaning of the language employed in s 16(1)(a)(ii) required that identification.
  2. [51]
    The Parliament of Queensland consists of the Queen and the legislative assembly.[25]  The Queen’s representative is the Governor.[26]
  3. [52]
    In Attorney-General of the Commonwealth v Queensland[27] a Full Court of the Federal Court of Australia considered separate Letters Patent issued by the governments of the Commonwealth and Queensland appointing a Commissioner to enquire into aboriginal deaths in custody.  In respect of the commonwealth Letters Patent French J, as his Honour then was and with whom Jenkinson J agreed, said:

“In relation to the Letters Patent issued by the commonwealth, it is made under an enactment.  ‘Enactment’ includes, for the purposes of the ADJR Act, an Act of the commonwealth parliament and an instrument (including rules, regulations or by-laws) made under such an Act.

The Letters Patent issued by the Governor-General were issued pursuant to the power conferred by s 1A of the Royal Commissions Act 1902 (Cth).  They constitute an instrument made under the Act…”[28]

  1. [53]
    The Queensland Letters Patent were different.  Of those, his Honour said:

“These were expressed to be issued by the Governor of Queensland ‘acting by and with the advice of our Executive Council of our state of Queensland and in pursuance of the Commissions of Enquiry Act 1950-1987 and all other powers him thereunto enabling.’   But unlike the Royal Commissions Act, the Commissions of Enquiry Act 1950 (Qld) does not create a power to issue Letters Patent.  Rather it regulates the conduct of the enquiries they authorise and confers incidental powers to require the attendance of witnesses and the production of documents and the like.”[29]

  1. [54]
    His Honour then discussed the “long accepted capacity in the Crown to conduct enquiries.” 
  2. [55]
    By contrast to the Commissions of Enquiry Act 1950 (Qld), the RECI Act does create a power to issue Letters Patent.  Section 1 of the RECI Act expressly creates such a power.  In that regard the RECI Act is analogous to the Royal Commissions Act 1902 (Cth).  The Letters Patent issued by the Governor in Council creating FMYC were issued pursuant to the power conferred by s 1 of the RECI Act.
  3. [56]
    Section 7(2) and (3) of the Statutory Instruments Act 1992 (Qld) provides that a statutory instrument includes an instrument made under an Act and which is an instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity. The Letters Patent constitute an instrument made under the RECI Act.
  4. [57]
    In Davis v City North Infrastructure Pty Ltd, Applegarth J considered whether a corporate entity had been established by government under an Act within the meaning of s 16(1)(a)(ii) of the RTI Act.  The Coordinator-General was created as a corporation sole under the State Development and Public Works Organisation Act 1939 (Qld).  The SDPWO Act gave the Coordinator-General power to do acts necessary for the proper exercise and performance of the powers, functions and duties of the Coordinator- General.  Exercising such powers, the Coordinator General had applied to the Australian Securities and Investment Commission to register City North Infrastructure Pty Ltd under the Corporations Act 2001 (Cth).  It was duly incorporated.
  5. [58]
    The applicant in that case contended that the exercise by the Coordinator-General of general powers conferred upon him under the SDPWO Act, which resulted in the incorporation of the entity under the Corporations Act, was sufficient to make the entity one that is established under an Act within the meaning of s 16(1)(a)(ii).
  6. [59]
    His Honour rejected that contention.  His Honour said:

“In this case, the Queensland Act relied upon, namely the SDPWO Act, does not say anything about the establishment of such an entity.  It gives the Coordinator-General the power to do acts that are necessary for the proper exercise and performance of the powers, functions and duties of the Coordinator-General.  The fact that pursuant to these general powers the Coordinator-General took steps to cause the company to be incorporated pursuant to a Commonwealth law does not mean that the corporation was established under the SDPWO Act.

The only act under which the corporate entity was established was the Corporations Act 2001 (Cth).  The SDPWO Act contained no provisions relating to the establishment of an entity, being provisions in accordance with which the respondent was established.

The act of the Coordinator-General (or departmental officers acting on his behalf) that led to the establishment of the respondent, such as the lodging of an application with ASIC, as required by s 117 of the Corporations Act, was not done in accordance with a Queensland Act that provided for the establishment of an entity.

The applicant’s submissions tend to construe s 16(1)(a)(ii) as if it read: ‘an entity… established by government pursuant to an exercise of power conferred by an Act….’  This is not what the legislation provides and to construe the section as if it contained the italicised words rather than the word ‘under’ would detract from the meaning conveyed by the words used by the parliament.  Those words posit a connection between the contents of the Act and the establishment of the entity.  They suggest that the Act itself include provision about the establishment of an entity so that it may be said that the entity was established under the Act, in the sense of being established in accordance with the Act’s provisions.

In my view, the fact that the acts which led to the incorporation of the respondent were authorised by an Act of the Queensland Parliament is not sufficient to conclude that the respondent was established ‘under an Act’ within the meaning of s 16(1)(a)(ii) of the RTI Act. The Act relied upon by the applicant in its first argument, namely the SDPWO Act, is not concerned with the establishment of an entity.  It contains no provisions that relate to the Constitution or establishment of a body – for example, provisions that describe what is to be done to establish an entity.”[30]

  1. [60]
    Again, in contrast to the SDPWO Act, the RECI Act is concerned with the establishment of an entity.  It does contain provisions that relate to the constitution or establishment of a body.[31]
  2. [61]
    Applying the reasoning of French J in Attorney-General of the Commonwealth v Queensland, and of Applegarth J in Davis, I am of the view that FMYC is an entity established by government under an Act for the purposes of s 16(1)(a)(ii).  It is thus a public authority.
  3. [62]
    I do not accept the reasoning of the Information Commissioner, as adopted in the appeal by the second respondent, that the natural and ordinary meaning of the language used in s 16(1)(a)(ii) requires the identification of the “founder” of the entity.
  4. [63]
    Again, many of the acts identified by the Commissioner as acts of establishment by Mr Marsden and the concerned citizenry, such as the donation of land or the erection of premises, are not acts which establish the corporate entity.  Even the act of the office holders in petitioning for incorporation did not, of itself, establish the entity.  The entity was established by the act of the Governor acting on the advice of the Executive Council issuing letters patent under the RECI Act.
  5. [64]
    The second respondent’s submission that determining that the “mere act of the Governor in Council issuing Letters Patent” would be to determine that entities with registered names are established by government and subject to the RECI Act is misconceived. It can be readily dismissed.
  6. [65]
    First, the registration of business names is now governed by Commonwealth legislation; the Queensland Parliament having referred its powers in that regard to the Parliament of the Commonwealth.[32]
  7. [66]
    Therefore, any registration of a business name does not occur under an Act within the meaning of s 16(1)(a)(ii) because “Act” as used in a Queensland statute means an Act of the Queensland Parliament.[33]
  8. [67]
    Moreover, the registration of a business name does not create or establish any entity.  No legal entity is created at all.  Rather, the registration simply registers a name to an already existing entity and permits that entity to carry on business under that name.  This was true also of registration of business names under the now repealed Business Names Act 1962 (Qld).

Disposition

  1. [68]
    For these reasons, the Information Commissioner erred in law in concluding that the second respondent was not a public authority and thus an agency within the meaning of those terms of s 16 and 14, respectively, of the RTI Act.  The Commissioner also erred in law in concluding that she did not have jurisdiction to deal further with the second respondent’s external review application.
  2. [69]
    The orders will be:
  1.  Appeal allowed.
  2.   The decision of the first respondent of 4 June 2014 is set aside.
  3. The first respondent is to consider the applicant’s application   for   external review according to law.

Footnotes

[1]  The second respondent is named in the proceedings as “Frederick Marsden Youth Centre Inc”.  The second respondent, in its own submissions (at para 15), identifies that its name was changed by a grant of further Letters Patent LP under the Religious, Education and Charitable Institutions Act 1867 (sic) to “Frederick Marsden Youth Centre Inc”.  The Letters Patent of 2 March 2000 issued under the Religious, Education and Charitable Instruments Act 1861 changed the name of the Marsden Home for Boys to the Frederick Marsden Youth Centre.  I am not able to identify from the evidence that “Inc” has ever formed part of the name of the Frederick Marsden Youth Centre as one would not expect it to unless it was incorporated under the Associations Incorporations Act 1981. 

[2]Stanway v Frederick Marsden Youth Centre Inc [2014] QICmr 22 at [23]. 

[3] RTI Act, ss 119(2) and (5). 

[4]  Information Commissioner’s reasons for decision at [5], referring to information obtained from the FMYC website. 

[5]  [2010] QCATA 60. 

[6]  [2011] QSC 285. 

[7]  [2014] QICmr 22 at [36]. 

[8]  Ibid at [39]. 

[9]  Ibid at [42]. 

[10]  Ibid at [43]. 

[11]  The relevant principles were explained by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-36. 

[12]  Second Respondent’s written submissions, [19].

[13]  Ibid at [20].

[14]  Ibid at [22].

[15]  Ibid at [23].

[16]  (1996) QAR 376 at [22].

[17]  (1947) 74 CLR 613 at 623.

[18]  Whether any entity created by the Governor in Council or a Minister might be inherently created for a public purpose is a separate issue which the parties did not address and which should not be considered.

[19] Re McAuliffe Deceased [1944] St R. Qd 167 at 178-179.

[20]  (1935) 53 CLR 296 at 305.

[21] Project Bluesky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

[22]Acts Interpretation Act 1954, s 14A.

[23]Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (Unreported New South Wales Court of Appeal, 14 August 1996).

[24]  [2010] QCATA 60 at [43], cited with approval by Applegarth J in Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at [29].

[25]Constitution Act 1867, s 2A; Constitution of Queensland 2001, s 6.

[26] Constitution Act 1867, s 11A(1); Constitution of Queensland 2001, s 30.

[27]  (1990) 25 FCR 79.

[28]  Ibid at 142.

[29]  Ibid at 143.

[30]  [2011] QSC 285 at [35]-[39].

[31]  See also s 4 of the RECI Act.

[32] Business Names (Commonwealth Powers) Act 2011 (Qld); Business Names Registration Act 2011 (Cth).

[33] Acts Interpretation Act 1954, s 6.

Close

Editorial Notes

  • Published Case Name:

    Adam Stanway v Information Commissioner and Frederick Marsden Youth Centre Inc

  • Shortened Case Name:

    Stanway v Information Commissioner

  • MNC:

    [2017] QCATA 30

  • Court:

    QCATA

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    07 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General (Cth) v Queensland (1990) 25 FCR 79
3 citations
Jump To
Cite 1 - (1990) 25 FCR 79
Cite 2 - (1990) 25 FCR 79
Cite 3 - (1990) 25 FCR 79
City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 60
2 citations
Jump To
Cite 1 - [2010] QCATA 60
Cite 2 - [2010] QCATA 60
Davis v City North Infrastructure Pty Ltd[2012] 2 Qd R 103; [2011] QSC 285
3 citations
Jump To
Cite 1 - [2011] QSC 285
Cite 2 - [2011] QSC 285
Cite 3 - [2011] QSC 285
McPhillimy v Gold Coast Motor Events Co (1996) QAR 376
1 citation
Jump To
Cite 1 - (1996) QAR 376
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
R v Australian Broadcasting Tribunal &Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13
1 citation
Jump To
Cite 1 - (1980) 144 CLR 13
R. v Regos and Morgan (1947) 74 CLR 613
1 citation
Jump To
Cite 1 - (1947) 74 CLR 613
Re McAuliffe (deceased) [1944] St R Qd 167
1 citation
Jump To
Cite 1 - [1944] St R Qd 167
Southport Corporation v Corporation of the Trustees of the Order of the Sisters of Mercy (Qld) (1935) 53 CLR 296
1 citation
Jump To
Cite 1 - (1935) 53 CLR 296
Stanway v Frederick Marsden Youth Centre Inc [2014] QICmr 22
5 citations
Jump To
Cite 1 - [2014] QICmr 22
Cite 2 - [2014] QICmr 22
Cite 3 - [2014] QICmr 22
Cite 4 - [2014] QICmr 22
Cite 5 - [2014] QICmr 22

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.